How to lodge immigration appeal like an expert? Best Free Advice

Lodge Immigration Appeal Online Against UK Visa Refusal DecisionThis relates to lodging an immigration appeal against an entry clearance and in-country refusal decision. An applicant can exercise the right to appeal against an immigration decision from outside and inside the UK and may lodge an appeal if the legal right to appeal is available, which is usually mentioned in the refusal letter. Accordingly, in terms of the Asylum & Immigration Tribunal (Procedure) Rules 2005, the post explains how, when and from where an applicant can lodge an immigration appeal.

Lodge Immigration Appeal Online Against UK Visa Refusal Decision

Rule 6 of the Asylum & Immigration Tribunal (Procedure) Rules 2005 provides that appeals can only be initiated by somebody submitting a notice of appeal against an appealable decision in line with the 2005 Rules.

Notice of Appeal Forms First Tier Tribunal

notice of appeal is required to be submitted to HM’s Courts & Tribunals Service on the appropriate form. Notice of Appeal forms for decisions made before April 6, 2015, are IAFT-1, IAFT-2 and IAFT-3; whereas, Notice of Appeal forms for decisions made after April 6, 2015, are  IAFT-5, IAFT-6 and IAFT-7. The IAFT-4 form is for an application to the first tier tribunal for permission to appeal to the upper tribunal immigration. 

Please note: in a few instances, inadvertently if the right of appeal is not mentioned in a Refusal Letter for an appealable decision and Notice of Appeal is not enclosed even then an applicant is well entitled to file an appeal.

Time Limits to Lodge an Appeal from Outside the UK is 28 Days

An applicant is required to lodge an appeal from outside the UK as soon as possible- at the most within 28 days after the receipt of the refusal decision. In case an applicant is required to leave the UK before exercising the right to appeal, then 28 days to appeal starts from the day that a person leaves the UK.

If an appeal is lodged after the 28 days deadline then the appellant is required to give a cogent reason for the delay in filing the appeal. The appeal tribunal is empowered to decide whether or not to hear the appeal despite its late filing.

Time Limits to Lodge an in-country Appeal is 14 Days

Immigration decision appeal is required to be lodged from inside the UK within 14 days from the date of receipt of the refusal letter. If an appeal is lodged after the stipulated 14 days deadline then the appellant is required to satisfy the merits of hearing the appeal despite late filing and the immigration appeal tribune decides whether or not to proceed the matter further.

Immigration and Asylum Online Appeal

Online appeals are quicker than the appeals by post or fax, therefore, it is recommended to file an online appeal relating to entry clearance, extension and indefinite leave to remain decisions made after April 6, 2015:

  • Form IAFT-4 for an application to First-tier Tribunal for Permission to Appeal to Upper Tribunal;
  • Home Office decision to deport a European Economic Area (EEA) National (form IAFT-5);
  • Form IAFT-6 for appeal against entry clearance refusal decisions such as spouse visa refusal appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 and human rights claim;
  • Home Office refusal under EEA Regulations relating to an application for an  EEA  family permit as a family member of an EEA national (form IAFT-6);
  • A refusal of protection or human rights claims, where an applicant can only apply after he/she has left the UK (form IAFT-7);
  • Certain decisions about applications submitted before 6 April 2015.

It is recommended to discuss with a specialist immigration appeal solicitors for success and best results as lack of a legal representative found to be a key factor for the variance in success rates.

Immigration Appeal Process Time UK

The average UK visa appeal decision time during 2017 has increased to 51 weeks from 35 weeks. Immigration Appeal Success Rate is 50%. Since 51 weeks is an average time, therefore, some appeals are decided within 6-9 months; whereas, other may remain pending even after a lapse of 12-15 months.

UK Immigration Appeal Fees

A fee of £80 for paper appeals and £140 for oral hearings (appeal) are required to be paid before lodging an appeal in the First-tier Tribunal (Immigration and Appeals Chamber). In 2016, the appeal fees were increased by 500%; however, the move was bitterly opposed and from November 25, 2016, all applicants were required to pay fees at previous levels. Moreover, the Ministry of Justice committed to reimburse the difference between the increased fee and the previous fee.

Ministry of Justice axes 500% rise in fees for immigration tribunals | UK news | The Guardian

Fees for an application to the first-tier tribunal dealing with immigration and asylum cases rose earlier this autumn from £80 to £490, while an oral hearing rose from £140 to £800. For the first time, appeals to the upper tribunal were being charged at £350 for each application and £510 for an appeal hearing.

Written statements – UK Parliament
From today all applicants will be charged fees at previous levels and we will reimburse, in all cases where the new fees have been paid, the difference between that fee and the previous fee.

Immigration Status while Appeal Pending

In terms of Section 3C of the Immigration Act 1971, leave is statutorily extended where a person had leave when they made an application or claim and that leave expired prior to the Secretary of State making a decision on the claim or application. Accordingly, leave to remain in the United Kingdom is extended until an appeal against refusal is finally determined.

No Removal While Appeal Pending

Section 3D of the 1971 Act provides for the extension of leave to remain in the UK until any appeal is determined where a person’s leave is varied so that no leave remains. Where the right of appeal is exercised from within the UK, Section 78 of the 2002 Act provides that the appellant will not be removed while the appeal is pending.

Lodging an Immigration Appeal Online May Mitigate Delays

In order to avoid delays in the processing of appeal one can lodge an immigration appeal online and can pay an appeal fee by using a credit or debit card.

In-country appeals can be filed online by using either IAFT-1 or IAFT-5 appeal form.

Appeals against appealable Entry Clearance Officer refusal decision can be filed online by using either IAFT-2 or IAFT-6 application form.

Appeals against non-ECO decision from outside the UK can be filed online by using either IAFT-3 or IAFT-7 immigration appeal form and an application to the first tier tribunal for permission to appeal to the upper tribunal immigration (on IAFT-4) can also be filed online.

All submitted appeal forms are required to:

  • be signed, dated & include the name and address of the appellant:
    • the form may be signed by either the appellant or their representative but, if the latter, the representative must confirm the form has been completed in line with the appellant’s instructions;
  • state whether there is an authorised representative and give their name and address;
  • state the appellant’s grounds of appeal and the reasons given in support of those grounds;
  • when possible, list any documents on which the appellant relies in support of their appeal.

For online filing of appeal go to Immigration & Asylum Tribunal. Alternatively, discuss how the best immigration appeal solicitors London can facilitate to file immigration appeal online successfully.

Oral and Paper Hearing

If an appellant and/or his/her representative plan to attend the hearing then can opt for an Oral Hearing; however, if no one intends to attend the appeal then can opt for Paper Hearing, which is determined on the papers provided with the respective appeal form. Oral Hearings provides a better opportunity to win an appeal successfully.

Immigration Appeal Fees

Immigration Appeal Fees for a paper appeal is £80 and that for oral hearings £140, which are required to be paid before lodging an appeal in the First-tier Tribunal (Immigration and Appeals Chamber). An appellant may not require to pay the fee if he/she is getting legal aid,  asylum support, services from the local council or is under 18 years of age. For details please read the tribunal fees guidance.

It is important to note that if an appeal is submitted without payment details, the Tribunal will write to the appellant with further instructions about how an appellant can pay immigration appeal fee, which will cause a delay in processing of the appeal.

First Tier Tribunal Immigration Appeal Time Limits

A notice of appeal is required to be lodged with the tribunal within the stipulated period from the date of service of an appealable decision.

Time Limit for Immigration Appeals within the UK

Where the appeal is brought in the UK then the stipulated period is fourteen (14) days to lodge an appeal after the appellant is sent the notice against which the appeal is brought. Moreover, in terms of Section 7(1)(a) of The Asylum and Immigration Tribunal (Procedure) Rules 2005 the time limits for Detention Appeals is 5 days.

Time Limit for Immigration Appeal Outside the UK

The time limits to lodge an appeal from outside the UK against an in-country decision when appealed from outside the UK is twenty-eight (28) days after the departure of the appellant from the UK (Form IAFT-7). For details refer to Section 7 The Asylum and Immigration Tribunal (Procedure) Rules 2005

The time limits for any other type of appeals such as asylum claim, spouse refusal etc. from outside the UK is also twenty-eight (28) days from the date of service of the decision. For details refer to Section 83 Nationality, Immigration and Asylum Act 2002

Late Immigration Appeals

Rule 10 of the Asylum & Immigration Tribunal (Procedure) Rules 2005 requires appellants who submit their notice of appeal late to request an extension of the time in which to lodge their appeal. The request for an extension of the time is required to give reasons for lodging a late or out of time appeal, along with any written evidence relied upon in support of those reasons.

Tribunal is Empowered to Extend Appeal Time Limit

The Tribunal is empowered to extend the time limit for appealing if it is satisfied that there are special circumstances that would make it unjust not to do so.

If the tribunal decides an appeal has been brought outside the relevant time limit but no application to extend time has been included, it can extend the time of its own choosing and notify the person their notice was given out of time. The appellant is then given the opportunity to file written evidence within specified time limits to demonstrate that the due to special circumstances appeal was not lodged within time limits.

Invalid Appeals

Rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides that the appeal tribunal may not accept a notice of appeal where there is no relevant decision. This will include where somebody:

  • is seeking to rely on the grounds of appeal that do not apply in their case;
  • has lodged an appeal in the UK when they only have an out of country appeal right;

Section 78 of the Nationality, Immigration and Asylum Act 2002 provides that the Home Office cannot remove someone while an appeal is pending. Therefore, the Home Office tries to raise questions about the validity of an appeal immediately. The tribunal’s urgent business process (Rule 11 of the 2005 Rules) reduces some of the time limits in the appeals process and may be used where an incorrectly instituted appeal may delay removal.

Pending Appeal Immigration

According to Section 104 of the Nationality, Immigration & Asylum Act 2002, an appeal is pending while the time limit for appealing is running. This will be either:

  • from the date of service of the Home Office’s notice of decision;
  • (when an appeal has been lodged) from the date the appellant provides notice of appeal (including when that notice is out of time – leave under Regulation 3C of the Immigration Act 1971 will only be re-instated if permission to appeal out of time is granted).

A person cannot be removed while an appeal that may be brought in the UK (an ‘in-country’ appeal) is pending. This only applies to appeals u/s 82 of the 2002 Act, which are in-country appeals u/s 92 of the 2002 Act. A person appealing an asylum decision u/s 83 of the 2002 Act cannot be removed because they will have leave to remain in the UK.

An appeal ceases to be pending when the appeal is finally determined, withdrawn or abandoned.

Pending Appeals and Judicial Review

Judicial review is not part of the appeals system, and the fact that an applicant may seek a judicial review does not affect whether or not an appeal is pending.

First-Tier Tribunal Application for Permission to Appeal

Where the tribunal dismisses the appeal, and once the time limit for appealing to the upper tribunal or higher court has expired, the appeal ceases to be pending unless (and until) the appellant receives the court’s permission to appeal out of time. If a higher court decides to remit (give back) a case to the tribunal, the remittal decision is not a final determination of the appeal, and therefore the appeal continues to be pending.

Suspensive Right of Appeal and Non-Suspensive Right of Appeal

Rights of appeal that allow appellants to remain in the UK while their appeal is heard are referred to as ‘suspensive’. Non-suspensive rights of appeal are those that may not be heard until the appellant has left the UK.

Abandoned Appeals

An appellant who is entitled to bring an appeal in the UK may leave first and lodge the appeal from abroad, but the appeal is deemed to be abandoned if an appellant lodges the appeal first and then leaves the UK.

Suspensive Rights of Appeal

According to Section 92 of the 2002 Act a person may only appeal from within the UK, and remain in the UK while their appeal is heard when they are in the UK when the immigration decision is made and their appeal is against one of the following immigration decisions:

  • refusal of a certificate of entitlement – section 82(2)(c) of the 2002 Act;
  • refusal to vary existing leave to enter or remain where the result is that the applicant has no leave remaining – section 82(2)(d) of the 2002 Act;
  • variation of leave to enter or remain so that a person has no leave (curtailment) – u/s 82(2)(e) of the 2002 Act;
  • revocation of indefinite leave to enter or remain u/s 76 of the 2002 Act – u/s 82(2)(f) of the 2002 Act;
  • removal from the UK u/s 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave) – section 82(2)(ha) of the 2002 Act;
  • a decision to make a deportation order u/s 5(1) of the Immigration Act 1971 – Section 82(2)(j) of the 2002 Act;
  • refusal of leave to enter – Section 82(2)(a) of the 2002 Act – providing at the time of the refusal the appellant was in the UK and (on arrival) had entry clearance – Section 92(3) of the 2002 Act;

However, if leave had been sought for a purpose other than that specified in the entry clearance the person may not appeal against a refusal of leave to enter while they are in the UK (even if these conditions are met) – Section 92(3A) and (3C) of the 2002 Act;

for more information about when appeals can be brought in the UK concerning refusals of leave to enter, please refer to Section 92 of Nationality, Immigration and Asylum Act 2002.

Asylum and human rights claims and claims of a breach of European Economic Area (EEA) Treaty rights

Section 92 of the 2002 Act also confers an in-country right of appeal against any decision if the applicant:

  • has made either an asylum or human rights claim while in the UK – Section 92(4)(a) of the 2002 Act (unless a section 94 certificate has been issued);
  • is an EEA national or family member of an EEA national who claims the decision breaches treaty rights in respect of entry to or residence in the UK – Section 92(4)(b) of the 2002 Act

Non Suspensive Right of Appeal

The remaining immigration decisions do not confer a right of appeal in the UK. For example, an appeal against a decision to remove someone as an overstayer u/s 10 of the Immigration & Asylum Act 1999 will be out of country (outside the UK), unless the person has obtained an asylum or human rights claim or raised their rights under European treaties relating to free movement while in the UK.

Clearly unfounded Asylum & Human Rights Claims

Section 94 of the Nationality, Immigration & Asylum Act 2002 applies to an appeal against decision u/s 82(1) of that act to which an in-country right of appeal might arise and where the appellant has made human rights or asylum claim (or both).

It provides that a person is not entitled to appeal from inside the UK if their asylum or HR claim is certified as clearly unfounded.

Such an appellant must leave the UK before their appeal is heard, and cannot, therefore, return to the UK to attend an appeal hearing. However, a claim cannot be certified as clearly unfounded once an appeal has been lodged.

Third country cases

An appellant cannot lodge immigration appeal in the UK if a certificate has been issued under Schedule 3 of the Asylum & Immigration (Treatment of Claimants etc.a) Act 2004. Accordingly, any HR claim has been certified as clearly unfounded. Therefore, in such cases, it is possible to lodge immigration appeal from abroad. For instance on the ground that the decision was unlawful, but it is not possible to appeal on asylum or HR grounds in regards to the country listed as safe.

How to Lodge an Appeal for dependants

Main applicants and their dependants will not always have the same appeal rights, even when their applications have been refused at the same time.

For example, the main applicant who submits an in time application for further leave and is refused will have a right of appeal. The dependant, however, may not have had leave at the time of the application and may therefore only have an appeal against removal from outside the UK.

Dependants who have not had their own asylum or human rights claim refused are entitled to appeal against a judgment to remove them but only from outside the UK.

Appeals System Prevents Repeat, Late, and Unfounded Claims

The appeals system contains quite a few controls to prevent the abuse of the system. Importantly, there are mechanisms to prevent repeat representations giving rise to either repeatéd appeals, or late claims essentially giving rise to late appeals that might delay removal and deportation, and unfounded claims giving rise to appeals that are aimed at delaying removals.

Appeals Certified u/s 97 and 97 as a National Security Case

In the first instance, Appeals are required to be made to the First Tier Tribunal which may either allow or dismiss an appeal. However, if a case is certified as a national security case u/s 97 and 97A then the appeals are required to be made to the Special Immigration Appeals Commission.

Grounds of Appeal u/s Section 84 of the Immigration Act

The grounds of appeal on which an appeal can be made are set out in Section 84 of the Immigration Act, which provides that an appeal can only be considered for the refusal of the claim made by an applicant.

Tribunal can Consider New Matter u/s Section 85

Section 85 sets out the matters a Tribunal may consider. The Tribunal can only consider ‘new matter’, ‘that has not been examined by the Secretary of State (SSHD), and the SSHD has given the Tribunal consent to do so. Moreover, a new matter cannot be raised before the Tribunal unless SSHD has had a chance to consider the new matter.

Lodge an Appeal u/s Section 92 of the Immigration Act

Section 92 provides the details relating to where an appeal will take place. Section 92 should be read together with Sections 94 & 94B which relate to certification if an appeal that would otherwise be held in the United Kingdom is required to lodge after an appellant has left the United Kingdom.

Applicants to Raise an Appealable Right at the Earliest

Section 96 of the Immigration Act provides that where the refusal of a claim would commonly result in a right of appeal and there will be no right of appeal if a claim should have been made earlier. Section 96 of the Act works with Section 120 which makes an ongoing duty on an individual/applicant to raise a new matter with the SSHD as soon as reasonably practicable after it has arisen.

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